FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

JACKIE YONG LEE,Defendant-Appellant.

No. 11-10460

D.C. No.1:08-cr-00020-

FMTG-2

OPINION

Appeal from the United States District Courtfor the District of Guam

Frances Tydingco-Gatewood, Chief District Judge,Presiding

Argued and SubmittedOctober 15, 2012—Honolulu, Hawaii

Filed August 7, 2013

Before: Stephen Reinhardt, Sidney R. Thomas,and Richard A. Paez, Circuit Judges.

Per Curiam Opinion

UNITED STATES V. LEE2

This summary constitutes no part of the opinion of the court. It has*

been prepared by court staff for the convenience of the reader.

SUMMARY*

Criminal Law

Vacating a sentence and remanding for resentencing, thepanel held that the district court committed three significanterrors in sentencing the defendant for her involvement in alarge-scale methamphetamine distribution scheme in Guam.

The panel held that the district court failed to use theGuidelines as a starting point, instead determining thesentence it desired to impose and then deciding the extent ofthe Guidelines reduction to be afforded in order to make thesentence fit within the Guidelines.

The panel held that the district court incorrectlycalculated the base offense level because it improperly heldthat the defendant had pled guilty to transportingmethamphetamine of a certain purity.

The panel held that the district court failed to determinea revised minimum sentence under 18 U.S.C. § 3553(e), adetermination it was required to make when consideringsubstantial assistance.

The panel could not assess the defendant’s claims that thedistrict court failed to give adequate consideration to the18 U.S.C. § 3553(a) factors, but advised the district court togive further consideration to the defendant’s age and thelikelihood that she will die in prison.

UNITED STATES V. LEE 3

COUNSEL

Mark Eibert, Half Moon Bay, California, for Defendant-Appellant.

Karon V. Johnson, Assistant United States Attorney,Hagåtña, Guam, for Plaintiff-Appellee.

OPINION

PER CURIAM:

The district court committed three significant errors atJackie Yong Lee’s sentencing. First, the court failed to usethe Guidelines as a starting point. Instead, it determined thesentence it desired to impose and then decided the extent ofthe Guidelines reduction to be afforded, in order to make thesentence fit within the Guidelines. This was the converseprocedure to that which it was required to follow. Second, itincorrectly calculated the Guidelines range when it held thatLee pled guilty to transporting methamphetamine that was 80percent pure. Third, it failed to determine a revised minimumsentence under 18 U.S.C. § 3553(e), a determination that itwas required to make in this case. For these reasons, wevacate and remand for resentencing. We also address Lee’sother arguments on appeal, because the issues are likely toarise again at resentencing.

I.

The details of Jackie Yong Lee’s crime and herinvolvement in the Ichihara drug network are neither relevantto this appeal nor clear from the record before us. We

UNITED STATES V. LEE4

therefore set forth only a brief summary of Lee’s criminalconduct. Richard Ichihara was in charge of a large-scalemethamphetamine distribution scheme in Guam, for which hewas ultimately sentenced to 30 years in prison. Lee wasindicted for her involvement in Ichihara’s drug network.

Ichihara and many others were indicted on ten counts orless of violating various federal drug laws because of theirinvolvement in the drug network. Lee was indicted on threecounts. Count II charged Lee and others with conspiracy todistribute “more than 50 grams of net weight ofmethamphetamine hydrochloride (ice),” in violation of21 U.S.C. § 841(a)(1) and § 846. Count III charged Lee andothers with conspiracy to distribute “more than 3,000 gramsof methamphetamine hydrochloride (ice), its salts, isomers,and salts of its isomers and more than 30,000 grams of amixture and substance containing a detectable amount ofmethamphetamine, its salts, isomers, and salts of its isomers,”in violation of 21 U.S.C. § 841(a)(1) and § 846. Count Xcharged Lee and others with a forfeiture count under21 U.S.C. § 853.

Shortly after the indictment was brought, Lee agreed tocooperate and plead guilty to Count III and Count X in returnfor the government’s dropping the charges under Count II andpromising to move for a “substantial assistance” reduction ather sentencing. The plea agreement contains the followingfactual stipulation:

Between 2004 and 2007, [Lee] suppliedRichard John Ichihara with over threekilograms of methamphetamine hydrochloride(ice) which she knew Ichihara wasdistributing.

UNITED STATES V. LEE 5

The district court accepted Lee’s guilty plea on Count III andCount X and appears to have relied on the factual stipulationin her plea agreement.

Over the next three years, Lee provided substantialassistance in the government’s investigation and prosecutionof the Ichihara drug network. Although the details of Lee’sassistance are sealed, the public record supports theconclusion that her assistance was significant. At Lee’ssentencing hearing, the government stated that the reasons forher substantial assistance were “detailed” and that she“helped [the government] substantially.” Additionally,defense counsel described Lee’s assistance as “extremelysubstantial,” a statement that was not contested by thegovernment. Also illustrative is the district court docketsheet, which reflects that her sentencing hearing was delayedfor three years. Most of the continuances were due to herongoing role in assisting the government.

At sentencing, Lee and the government disputed whetherLee’s base offense level should be 38 or 34. The governmentargued that by stipulating in her plea agreement that she haddistributed more than three kilograms of “methamphetaminehydrochloride (ice),” Lee had admitted transporting morethan 1.5 kilograms of “ice” as defined in the SentencingGuidelines— that is, “a mixture or substance containing d-methamphetamine hydrochloride of at least 80%purity.” U.S.S.G. § 2D1.1(c) n.(C). Lee argued that she hadnot admitted transporting methamphetamine of an eightypercent purity level and that she understood “ice” to be thestreet name for methamphetamine generally. She reliedheavily on the fact that all three of the drug tests described inthe PSR—which represented the entire factual record beforethe district court—reported that the methamphetamine was

UNITED STATES V. LEE6

below 80% purity. The district court, however, rejected herargument. It stated that “ice” was a “term of art which meansa methamphetamine purity of 80 percent or more.” Thedistrict court further stated that its conclusion was notundermined by the three drug tests because “only a smallfraction of the total drugs” were tested. Thus, the districtcourt concluded, Lee’s proper base offense level was 38.

At this point in the sentencing hearing, the probationofficer re-calculated Lee’s Guidelines range. He began at abase offense level of 38 and applied the 3-level reduction foracceptance of responsibility, which yielded a total offenselevel of 35. Lee’s new sentencing range was 188–235months, with a mandatory minimum of 120 months. Thedistrict court then asked for the probation officer’srecommendation, to which the officer responded 120 months.The district court inquired, “So the mandatory minimum often years?” The probation officer responded, “Yes.”

The district court then turned to the “substantialassistance” reduction. The government began its argumentby officially “mov[ing] for a substantial assistance departure—from both the guidelines and the mandatory minimumsentence.” The government noted that the reasons for Lee’ssubstantial assistance were “detailed.” However, it “had toweigh a balance against the substantial assistance, her role inthe organization and her prior conviction.” “[B]alancing thetwo, the seriousness of her offense against her cooperationwhen she finally get caught,” the government believed that “a96-month sentence is appropriate.”

The district court questioned the government’srecommended sentence of 96 months. It first noted thepotential disparity with Lee’s co-defendants, specifically

UNITED STATES V. LEE 7

These errors were corrected later in the proceeding.1

Ichihara who was given a 30-year sentence. The governmentresponded that Ichihara was a far more serious criminal. Thedistrict court then noted another co-defendant who was “notas culpable” as Lee but was sentenced to 97 months. Thegovernment distinguished this co-defendant on the groundthat Lee “helped us substantially.” The government alsonoted Lee’s age, which was 72 years at the time ofsentencing. The government concluded: “So we think that, ineffect, this is a life sentence, which, given what she’s done,is appropriate.” The district court responded: “Okay.”

The district court proceeded to rule on the government’smotion to depart “from the guideline level as [] provided bythe United States sentencing guidelines Section 5K1.1 on thebasis that the defendant has rendered substantial assistance tothe prosecutor in its investigation of drug trafficking onGuam and elsewhere.” It granted the 10-level departure, asrequested by the government. The district court then(incorrectly) calculated that, after applying the 10-leveldeparture, Lee’s total offense level under the SentencingGuidelines was 28. It further stated (also incorrectly) that herGuidelines range was therefore 78–97 months.1

Defense counsel then argued that Lee should be sentencedat the low end of this range. Specifically, counsel mentionedthe extensiveness of Lee’s assistance to the government, heradvanced age, her caretaking duties for her disabled 80-year-old partner who was nearing death, and her genuine

UNITED STATES V. LEE8

At multiple points during the sentencing hearing, the transcript either2

states or suggests that Lee was crying. On one instance, the district court

asked for someone to provide her with some water. Lee’s principal

statement to the district court was to repeat that she was “[S]orry. Very

sorry.”

contrition. Regarding Lee’s age, defense counsel stated that2

“eight years is probably a life sentence” and that he did notbelieve a life sentence was the “intention” of the guidelines.Defense counsel concluded, “at that age, her ability to domuch of anything that would be in violation of the law, Ithink, is going to be unlikely due to what would be herphysical condition at that time.”

As the district court prepared to impose a final sentence,the probation officer interrupted to explain that the court hadcalculated the Guidelines range incorrectly. Because thedistrict court had not applied a 3-level enhancement includedin the PSR’s calculations, Lee’s total offense level was 35before applying the “substantial assistance” departure. Thegovernment had requested a 10-level departure in its filings(based on its initial belief that Lee’s total offense level was38). Because the district court had granted the 10-leveldeparture, Lee’s total offense level was 25. With a criminalhistory category of II, Lee’s range under the Guidelines was63–78 months, and imposing a 96-month sentence wouldtherefore be an above-Guidelines sentence.

The district court asked the government to clarify itsrequest for the “substantial assistance” departure underU.S.S.G. § 5K1.1. The government stated that it believed “96months was appropriate, whatever level one has to depart to,to get to that.” The district court then asked, “[s]o . . . you’reactually asking for a departure to the level of [] 28[?]” The

UNITED STATES V. LEE 9

The error that is the subject of Part II.A, although not clearly raised in3

either party’s briefs, is closely intertwined with their arguments. We

address this error, even though it was not clearly briefed, because it is both

“antecedent to . . . and ultimately dispositive of” the appeal before us.

Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990); see also U.S. Nat’l

Bank of Oregon v. Ind. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993)

(stating that courts may rule on an antecedent issue even if “the parties fail

to identify and brief” it).

government responded affirmatively, and the district courtnoted that this meant that the government was “changing [its]request.” The government agreed and stated that it was nowseeking a 7-level departure because it “fe[lt] strongly aboutthe 96 months.”

The district court then granted the government’s motionfor a 7-level departure under § 5K1.1. Lee’s total offenselevel was therefore calculated at 28. The district court statedthat Lee’s final sentencing range under the Guidelines was87–108 months, and it imposed a 96-month sentence. Whenthe district court finally asked if Lee understood her 96 monthsentence, she stated, “my heart condition is not so good, so Idon’t know I can get out or I die there.”

II.

A.3

Although a district court has discretion, post-UnitedStates v. Booker, 543 U.S. 220 (2005), and under the18 U.S.C. § 3553(a) factors, to impose a sentence it preferseven if that sentence is outside of the Guidelines range (solong as it is not lower than a statutory or revised statutoryminimum sentence), it may not manipulate the calculationsunder the Sentencing Guidelines in order to produce a

UNITED STATES V. LEE10

U.S.S.G. § 5K1.1 provides: “Substantial Assistance to Authorities4

(Policy Statement): Upon motion of the government stating that the

defendant has provided substantial assistance in the investigation or

prosecution of another person who has committed an offense, the court

may depart from the guidelines.

(a) The appropriate reduction shall be determined by

the court for reasons stated that may include, but are not

limited to, consideration of the following:

(1) the court’s evaluation of the significance and

usefulness of the defendant’s assistance, taking into

consideration the government’s evaluation of the

assistance rendered;

(2) the truthfulness, completeness, and reliability of any

information or testimony provided by the defendant;

(3) the nature and extent of the defendant’s assistance;

Guidelines range that will allow it to impose the sentence itprefers. As the Supreme Court has repeatedly held, theSentencing Guidelines are the “starting point” for a districtcourt’s sentencing analysis. Freeman v. United States,131 S. Ct. 2685, 2692 (2011); Kimbrough v. United States,552 U.S. 85, 108 (2007); Gall v. United States, 552 U.S. 38,49 (2007). Here, however, the district court did not use theGuidelines as a starting point. Rather, at the government’srequest, the court agreed to impose a sentence of 96 monthsand then selected a departure level for Lee’s substantialassistance under U.S.S.G. § 5K1.1 that would enable it tohold that the desired sentence was within the Guidelinesrange. The record could not be clearer on this point: the4

UNITED STATES V. LEE 11

(4) any injury suffered, or any danger or risk of injury

to the defendant or his family resulting from his

assistance;

(5) the timeliness of the defendant’s assistance.”

The Guidelines analysis currently consists of a three-step process. The5

district court must (1) calculate the Guidelines range, (2) consider any

applicable “departures” under Parts H and K of Chapter 5 of the

Sentencing Guidelines, and (3) consider the factors in 18 U.S.C.

§ 3553(a). See U.S.S.G. § 1B1.1 (2010). It may then impose the sentence

it chooses. “If, after step ([3]), the court imposes a sentence that is outside

the guidelines framework, such a sentence is considered a ‘variance.’”

U.S.S.G. § 1B1.1 background (2010) (citing Irizarry v. United States,

553 U.S. 708 (2008)). Although it might appear odd to refer to choosing

a sentence outside the Guidelines range as “under the Guidelines,” such

is the effect of the Sentencing Commission’s making the consideration of

a “variance” the third step of the Guidelines procedure. See, e.g., United

States v. Jackson, 467 F.3d 834, 840 (3d Cir. 2006) (referring to the third

district court had initially granted a 10-level departure underU.S.S.G. § 5K1.1 and was ready to impose a 96-monthsentence from a Guidelines range of 87–108 months when theprobation officer interrupted to explain that, under the propercalculation of the Guidelines, a 10-level departure wouldresult in a range of 63–78 months. The district court—insteadof accepting that lower range and exercising its discretion toimpose an above-Guidelines sentence—reduced thesubstantial assistance departure to a 7-level departure. It wasthus able to create an artificial Guidelines range of 87–108months and select a 96-month sentence within that range.

A district court may not create a Guidelines range on abasis that it is necessary to enable the court to impose thesentence it would like to impose. A district court may,however, calculate a proper Guidelines range and then choosea sentence outside that range by granting a variance. This is5

UNITED STATES V. LEE12

step of this three-step process as the consideration of “Guidelines

variances”).

We recognize that, post-Booker, this court no longer reviews a district6

court’s application of a guidelines departure for procedural error. See

United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006); United

States v. Vasquez-Cruz, 692 F.3d 1001, 1007–08 (9th Cir. 2012). Our

concern here is not that the district court procedurally erred in its

application of a single departure, but rather that the record demonstrates

that the district court did not use the guidelines range as a starting point

whatsoever. Instead, the court chose a desired sentence, the one

recommended by the government, and worked backward to create a

guidelines range that encompassed that sentence.

not what happened here. Because the district court employedprecisely the converse procedure to that which it was requiredto follow, it clearly erred.6

B.

The district court committed a second error ofsignificance by incorrectly calculating the base offense level.Under the Sentencing Guidelines, an individual convictedunder 28 U.S.C. § 841 is generally sentenced based on theDrug Quantity Table in U.S.S.G. § 2D1.1(c). Formethamphetamine, the Table specifies a base offense level of38 if the drug quantity is as follows:

15 KG or more of Methamphetamine, or 1.5KG or more of Methamphetamine (actual), or1.5 KG or more of “Ice.”

The base offense level is 34 if the drug quantity is as follows:

At least 1.5 KG but less than 5 KG ofMethamphetamine, or at least 150 G but less

UNITED STATES V. LEE 13

For example, a 10 KG mixture of methamphetamine of 80% purity7

would be 10 KG of Methamphetamine, 8 KG of Methamphetamine

(actual), and 10 KG of Ice. A 10 KG mixture of methamphetamine of 70%

purity would be 10 KG of Methamphetamine, 7 KG of Methamphetamine

(actual), and 0 KG of Ice.

than 500 G of Methamphetamine (actual), orat least 150 G but less than 500 G of “Ice.”

U.S.S.G. § 2D1.1(c). Some additional definitions arenecessary to apply these provisions. The quantities relating to“Methamphetamine” (as opposed to “Methamphetamine(actual)” or “Ice”) are based on the “entire weight of anymixture or substance containing a detectable amount of thecontrolled substance.” § 2D1.1(c) n.(A). The quantitiesrelating to “Metamphetamine (actual)” are based on theweight of actual methamphetamine—i.e., the total weight ofthe mixture, multiplied by the average purity. § 2D1.1(c)n.(B). The quantities relating to “Ice” are based on the totalweight of the mixture, if the methamphetamine is of at least80% average purity. § 2D1.1(c) n.(C).7

Lee was sentenced under the 38-level provision. Thedistrict court looked to Lee’s factual stipulation in her pleaagreement, which reads as follows:

Between 2004 and 2007, [Lee] suppliedRichard John Ichihara with over threekilograms of methamphetamine hydrochloride(ice) which she knew Ichihara wasdistributing.

The district court held that the reference to“methamphetamine hydrochloride (ice)” compelled the

UNITED STATES V. LEE14

In the alternative, she argues that, even if the purity issue was8

stipulated to in the plea agreement, because the district court was not

bound by her stipulation and because she disputed purity, the district court

should have resolved the issue under Federal Rule of Criminal Procedure

32(i)(3)(B). We do not reach this issue.

Contrary to the government’s suggestion, Lee’s argument is not (and9

has not ever been) that her guilty plea was not knowingly or intelligently

made. She disputes the interpretation of her plea agreement, not the

circumstances under which she pled guilty.

conclusion that Lee admitted to transporting “Ice,” as definedby the Sentencing Guidelines. Under that interpretation,because the quantity specified in the plea agreement was3 KG, Lee would fall into the 38-level provision in U.S.S.G.§ 2D1.1(c).

Lee challenges this determination. She argues that sheunderstood the word “ice” to be a reference tomethamphetamine generally. She points to the only three testsrun on the seized drugs, which showed the purity to be 33%,57%, and “less than 80%” respectively. Under Lee’sinterpretation, since the term “ice” was, in her case, areference to methamphetamine generally, the factualstipulation was only to having transported 3 KG of a mixtureof methamphetamine. Thus, Lee would fall into the 34-levelprovision in U.S.S.G. § 2D1.1(c).8

This is a dispute over how to interpret Lee’s pleaagreement, and we hold in favor of Lee. Plea agreements are9

analyzed under contract law principles. United States v. De laFuente, 8 F.3d 1333, 1337 (9th Cir. 1993). “In construing anagreement, the court must determine what the defendantreasonably understood to be the terms of the agreement whenhe pleaded guilty.” Id. Additionally, any ambiguity is read

UNITED STATES V. LEE 15

The government also argues that Lee’s guilty plea necessarily10

admitted the drug purity allegation in the indictment. We rejected an

analogous argument relating to a drug quantity allegation in the indictment

in United States v. Thomas, 355 F.3d 1191, 1196 (9th Cir. 2004). Because

purity is merely the ratio of two quantity measures, the government’s

argument is foreclosed by Thomas.

against the government. Id. at 1338. Lee contends that sheunderstood the terms of her plea agreement to be a factualstipulation to having transported 3 KG of a methamphetaminemixture, not 3 KG of methamphetamine of 80% purity. Hercontention is strongly supported by the factual record. Therecord indicates that all members of Ichihara’s drugtrafficking scheme referred to the methamphetamine,regardless of its purity, as “ice.” Furthermore, as Lee notes,the only methamphetamine samples tested in this case wereall below 80% purity. Although the district court is certainlycorrect that not all drugs were tested, this does not undermineour conclusion that the record strongly supports Lee’scontention that, at the time of her plea, she understood herfactual admission to be that of transporting methamphetaminegenerally, not methamphetamine of 80% purity. Finally, evenif the record were ambiguous, we would read any ambiguityagainst the government and in favor of Lee. Id.

The government’s response is to suggest that the word“ice” is unambiguous because the Sentencing Guidelinesdefine “ice” as methamphetamine above 80% purity.Although we agree that the Sentencing Guidelines are onesource of authority in interpreting what a defendant mighthave understood a plea agreement to mean, the governmentcites no precedent to support the conclusion that theGuidelines are the exclusive authority. Nor do we agree thatsuch a rule would be appropriate.10

UNITED STATES V. LEE16

We conclude that, at the time of making her pleaagreement, Lee factually stipulated only to having transported3 KG of methamphetamine and that she did not admit to anypurity level. Consequently, applying the 38-level provision insentencing Lee constituted procedural error.

In sum, the district court committed two errors incalculating the Guidelines range. First, the district court failedto use the Guidelines as a “starting point” for its analysis.Instead, it selected the sentence first and then placed Lee inthe Guidelines range that would allow the sentence. Second,it incorrectly calculated the base offense level because itimproperly held that Lee had pled guilty to transportingmethamphetamine of a certain purity level. Accordingly, wevacate and remand for resentencing.

III.

Lee also argues that the district court’s imposition of a96-month sentence under the Guidelines was substantivelyunreasonable under the 18 U.S.C. § 3553(a) factors.However, we cannot review this claim because the districtcourt failed to calculate a revised minimum sentence under18 U.S.C. § 3553(e), a determination that it was required tomake in order to ensure that the sentence would not be lowerthan the revised statutory minimum.

A.

Prior to the Supreme Court’s decision in United States v.Booker, 543 U.S. 220 (2005), there were two importantconstraints on a district court’s sentencing authority. First, thedistrict court was limited in its sentencing by any applicablemandatory minimum sentence set forth in the statute that the

UNITED STATES V. LEE 17

Section 3553(e) provides: “Limited authority to impose a sentence11

below a statutory minimum. Upon motion of the Government, the court

shall have the authority to impose a sentence below a level established by

statute as a minimum sentence so as to reflect a defendant’s substantial

assistance in the investigation or prosecution of another person who has

committed an offense. Such sentence shall be imposed in accordance with

the guidelines and policy statements issued by the Sentencing Commission

pursuant to section 994 of title 28, United States Code.”

defendant violated, subject to limited exceptions. Second, thedistrict court was required to impose a sentence within therange prescribed by the Sentencing Guidelines. Bookerrendered the Sentencing Guidelines advisory, thuseliminating to a large degree the second constraint on districtcourt sentencing. However, the first constraint remains, anda district court is still required to impose a sentence no lowerthan the mandatory minimum sentence, even if it wouldprefer to impose a lower sentence under the now-advisorySentencing Guidelines. See U.S.S.G. 5G1.1. In short, thestatutory minimum takes precedence over whatever the resultunder the Guidelines or otherwise might be.

But when a defendant has provided substantial assistanceto the government, the district court may calculate a revisedmandatory minimum under 18 U.S.C. § 3553(e),11

considering only factors related to the defendant’s assistance.United States v. Wimpf, 620 F.3d 1168, 1171 (9th Cir. 2010);United States v. Auld, 321 F.3d 861, 867 (9th Cir. 2003). Therevised mandatory minimum constitutes the new floor for thedefendant’s sentence.

In this case, the district court erred by not determiningthat the sentence it had chosen—its “preferred sentence”—was not lower than the revised statutory minimum sentence.The pre-departure statutory minimum sentence was 120

UNITED STATES V. LEE18

Lee’s assistance was “extremely substantial” and occurred over the12

course of three years. Indeed, the government believed that Lee’s

assistance merited at least a 7-level departure under the Guidelines, which

months. The district court selected a preferred sentence of 96months. Because 96 months is less than the statutoryminimum sentence of 120 months, the district court couldsentence Lee to 96 months only if it revised the statutoryminimum sentence so that it was not greater than 96 months.In order to revise the statutory minimum sentence, the districtcourt needed to consider the “substantial assistance”reduction provided for by 18 U.S.C. § 3553(e). Although thereduction in this case should clearly be very substantial, it isclear from the record that the district court did not make thenecessary determination as to what it would be. Whenconsidering the “substantial assistance” issue, the districtcourt never mentioned the words “mandatory minimum,”even though it had recognized earlier that Lee was subject toa mandatory minimum sentence that it was necessary torevise downward substantially. Additionally, in granting thegovernment’s motion for a “substantial assistance” reduction,the district court explicitly cited “Section 5K1.1” but did notmention 18 U.S.C. § 3553(e). Finally, its close attention tothe correct number of “levels” to which to depart is consistentwith applying the “substantial assistance” provision under theSentencing Guidelines but not with reducing the statutoryminimum sentence under 18 U.S.C. § 3553(e). Thus, thetotality of the district court’s statements at sentencing isconsistent with its failure to determine a revised minimumsentence in accordance with 18 U.S.C. § 3553(e). As a result,it is impossible to know whether the sentence that the districtcourt imposed —96 months —was lower or higher than therevised statutory minimum, which the court was required, butfailed, to establish.12

UNITED STATES V. LEE 19

corresponds to an approximately fifty percent reduction in her sentencing

range. The reduction in the mandatory minimum sentence may well also

be extremely substantial given the nature of her assistance.

We do not know what other facts led the court and the prosecutor to13

agree on this conclusion. However, we assume that there was valid reason

for it.

B.

Because of this error, we cannot assess Lee’s claim thatthe district court failed to give adequate consideration to the§ 3553(a) factors. However, we address Lee’s argumentsbecause the district court is likely to confront them again onremand. See United States v. Sayetsitty, 107 F.3d 1405, 1411(9th Cir. 1997); United States v. Doe, 705 F.3d 1134,1139–40 (9th Cir. 2013).

Lee presents many arguments for why a 96-monthsentence is substantively unreasonable in her circumstances:her extensive assistance to the government, her advanced age(72 years old at the time of sentencing), her contrition, andher sole caretaker role for her dying partner. Because wecannot determine what length sentence the district courtmight impose on remand, we will not consider whether, if itwere to impose the same sentence that it imposed at the initialsentencing, such a sentence would be substantivelyunreasonable. However, we agree that the district court didnot give sufficient weight to the facts on which it and theprosecution agreed: that for a 72-year old woman, a 96-monthsentence is likely to be the equivalent of a life sentence andthus a verdict that Lee will die in prison. “There is a worthy13

tradition that death in prison is not to be ordered lightly, andthe probability that a convict will not live out his sentence

UNITED STATES V. LEE20

We note that although the district court may use the § 3553(a) factors14

as a basis for departing from the new Guidelines sentence that it

calculates, the court may not use the § 3553(a) factors as a basis for

departing from the new mandatory minimum sentence that it calculates.

See United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir. 2009).

should certainly give pause to a sentencing court.” UnitedStates v. Wurzinger, 467 F.3d 649, 652 (7th Cir. 2006). Here,however, the district court did not pause in sentencing Lee toa likely sentence of death in prison. The governmentspecifically advised the district court that it believed a 96-month sentence was appropriate because Lee would likely diein prison. To this, the district court responded: “Okay.”During resentencing, the district court, in exercising itsdiscretion, should give more serious consideration to whetherto impose a sentence that effectively condemns a 72-year-oldwoman who provided extensive assistance to the governmentto death in prison for an offense of the nature involved.14

CONCLUSION

The district court committed three errors in sentencingLee. First, it did not use the Guidelines as a “starting point.”Instead, it determined its preferred sentence and then adjustedthe Guideline range such that its preferred sentence fellwithin that range. Second, it incorrectly held that Lee pledguilty to transporting methamphetamine that was 80 percentpure. Third, it did not calculate the revised statutorymandatory minimum sentence and, thus, we cannot determinethe legality or appropriateness of Lee’s sentence. Thereforewe vacate her sentence and remand for resentencing. We also

UNITED STATES V. LEE 21

advise the district court to recompute the base offense levelupon remand and to give further consideration at resentencingto Lee’s age and the likelihood that she will die in prison.

VACATED and REMANDED for RESENTENCING.